Edited by Thomas Eger and Hans-Bernd Schäfer
Chapter 9: Private Law I: Tort
Michael G. Faure* 1 INTRODUCTION In this chapter I will address the way in which the EU has dealt with one particular aspect of private law, namely tort law, from the perspective of economic analysis of law. When referring to EU law the crucial question (and the one that this chapter will deal with) is obviously to what extent harmonisation or centralisation of decision making to the central (EU) level may be indicated. The approach I will follow is the one of the economics of federalism. The economics of federalism seems to be a particularly appropriate way of looking at harmonisation efforts in Europe because the European Commission has been using economic arguments to justify its harmonisation efforts for some time. More specifically, the argument has been long advanced that a harmonisation of law, including private law, is necessary in order to harmonise the conditions of competition within Europe. One aspect of this chapter is an analysis of whether this ‘economic’ argument for the harmonisation of the conditions of competition is indeed a valid economic justification for harmonisation. Moreover, applying the economics of federalism to the harmonisation of private law within Europe also has the advantage that a balanced view of the need to harmonise private law can be presented. Indeed, economic analysis does not come up with black and white statements in favour of or against harmonisation, but allows balanced criteria to be advanced on the basis of which those areas and topics which may be good candidates for...
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